Samuel D. Obar v. Walpole, Town of - Town Administrator (SPR 20170559)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor 9/ Records May 9, 2017 SPR17/559 James Johnson Town Administrator Town of Walpole 135 School Street Walpole, MA 02081 Dear Mr. Johnson: I have received the petition of Samuel D. Obar appealing the response of the Town of Walpole Town Administrator (Town) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Obar requested a copy of: All documentary materials, correspondence or data made or received between June 1, 2015 and April 1, 2016 by any officer, selectman, or employee of the Town of Walpole regardless of physical form or characteristics that relates to Siemens Healthcare Diagnostics, Inc., TIF process and arrangement with the Town of Walpole, including all documentary materials, correspondence or data made or receivedin 2015, 2016, and 2017 with the words "Bluebird," "Siemens," "Williams, Grant," "MillerCanfield," or "TIF." The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA( d); 950 C.M.R. 32.03(4 ). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

J aines Johnson SPR17/559 Page 2 May 9, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § IO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. Common law attorney-client privilege The Town's March 16th response explained that the Town has withheld one hundred fifty-five (155) records, in particular emails and email chains pursuant to the common law attorney-client privilege. There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Center, Inc., v. Comm'r of the Dept. of Mental Retardation (No. 1), 424, Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. 444 (2008). The Court found that the privilege applies in the public realm. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614-615 (1993). The Court affirmed the "general rule" that when matters are "communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony." Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting Fosterv. Hall, 12 Pick. 89, 93, (1831). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney-client relationship exists, but that, with respect to the privileged materials: (1) the communications were received from a client during the course of the client's search for legal advice from the attorney in his or her capacity as such; (2) the communications were made in confidence; and (3) the privilege as to these communications has not been waived.

James Johnson SPRI 7/559 Page 3 May 9, 2017 Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter of the Reorganization ofElec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609,619 (2007) (stating that the party seeking the. attorney-client privilege has the burden to show the privilege applies). Mr. Obar has questioned the Town's statement that the attorney-client privilege has not been waived, pointing out that Mr. Johnson stated in his March 16th response, "the Town has withheld 155 items, which are emails/email chains between predominantly, myself and several attorneys ... and/or communications between Town officials and myselfrelaying the substance of attorney-client privileged information." It is the emails/email chain between you and other Town officials relaying information that Mr. Obar takes issue with, and believes that the Town has waived its attorney-client privilege as to those emails. Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records "shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed." G. L. c. 66, § IOA(a). Consequently, the Town must provide further information regarding the records withheld as privileged, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed. Exemption (a) The Town has withheld certain of the records pursuant to Exemption (a), known as the statutory exemption, which permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law."

James Johnson SPRl 7/559 Page 4 May 9, 2017 The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The nature of Mr. Obar's request and the content of the Town's response raise an issue that invokes the Open Meeting Law. The Town claims that some of the various email communications are being withheld under the Open Meeting Law exception for executive session discussions pursuant to G. L. c. 30A, §§ 21(a)(6) and 22(f). You further state that to the extent that the TIF agreement at issue has not yet been fully executed, the purpose for those executive session(s) has not yet expired. Therefore, the Town believes that disclosure of this information may defeat the lawful purpose for the executive session(s) and the emails are being withheld under the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to the status of the executive session minutes regarding any discussions of the TIF agreement. See G.L. c. 30A, § 23. It is recommended that you contact the AGO should you seek a determination on this issue. Exemption (d) The Town also contends that certain of the email communications are exempt in their entirety pursuant to Exemption (d) of the Public Records Law. Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, § 7 (26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Sec'y of the Executive Office of Human Services, 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (Purely factual matters used in the development of government policy are always subject to disclosure.).

J aines Johnson SPRl 7/559 Page 5 May 9, 2017 Your March response states that the policy and legal matters associated with the TIF agreement remain on-going until such time as the agreement is finalized. Then, you state that the agreement itself has been executed by the Town's Board of Selectmen, but that additional items associated with the TIF agreement have yet to be finalized. Therefore, you claim that all the responsive records, including the TIF agreement, have not otherwise been publicly-released and are being withheld from disclosure pursuant to Exemption ( d). I find that the Town has not met its burden of proving with specificity how it may withhold the TIF agreement and any associated records in their entirety pursuant to Exemption ( d) of the Public Records Law. Custodial obligation of specificity Mr. Obar requested all documentary materials, not simply the TIF agreement and emails; however, the Town only responded regarding email communications. Furthermore, the Town has not clarified which email records it is withholding under Exemption (a) and under Exemption (d). The Town's March response states that approximately 835 email communications are being withheld, but the Town did not met its burden of specifying which of those emails the Town is withholding under Exemption ( d) versus the OML exceptions allowed for executive sessions. Please be advised that the exemptions are narrowly construed and are not blanket in nature. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Order Accordingly, the Town is hereby ordered to provide Mr. Obar with a detailed written response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma. us. Mr. Obar may appeal the substantive nature of the response within ninety (90) days. 950 C.M.R. 32.08(1). Sincerely, ~~ Supervisor of Records cc: Samuel D. Obar Michele E. Randazzo, Esq.